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Property Lawyers

What is “Real Property”?

Property laws make distinctions between two main types of property: “real property” and “personal property”. These classifications have many implications, legally speaking.

Real property is defined as land, as well as anything that is affixed to, growing on, or built on that plot of land. It therefore includes man-made structures and buildings as well as crops, plants, and even oil, gases, and minerals that may be found under the ground. An easy way to think about real property is basically property that doesn’t move, or property that is attached to the ground.

In comparison, personal property is defined as “anything that may be subject to ownership, besides land”. Thus, the main foundation of physical property is that it can be moved, unlike land or real property. Personal property may be further divided into two types: tangible and intangible. Tangible personal property includes items that can be physically handled, like jewelry, clothes, electronics, etc. Intangible property are assets that can’t be handled, like stocks or bank account amounts.

So, as you can see, there will be major differences with regard to laws covering real and personal property. For instance, personal property can sometimes be lost or mislaid, whereas you can’t really “lose” or “misplace” land or buildings. Also, real property must be transferred in a different way (i.e., through a deed or other document), since you can’t really “hand” over land to someone else.

What Happens to Real Property During a Divorce?

In particular, property laws are very specific with the way property is divided in relation to a divorce. It is generally easier to separate personal property in relation to a divorce; it is often simply a matter of identifying who owns which item. In comparison, real property can be difficult to “divide”.

In many instances, it depends largely on whether property (whether real or personal), is considered “community property” or “communal property”. In most states, communal property is defined as property that was acquired while the couple was married. As such, communal property is usually split evenly between the parties when they divorce.

In contrast, property obtained outside of the marriage (i.e. before the marriage) may be considered “separate” property; each spouse usually keeps their own separate property in full when they divorce. Communal property generally does NOT include:

  • Property obtained before marriage;
  • Property given as a gift specifically to only one spouse;
  • Any property obtained after divorce or separation proceedings has already been initiated.

One major point here is that each state may have very different laws regarding the way that communal and separate property are both classified and distributed. For instance, “community property states” or “marital property states” are states whose laws split community property evenly during divorce or separation.

Other states may follow different guidelines for distributing property. For example, some states might exercise some sort of “equitable distribution” formula, which incorporates a broad range of factors to create a fair property distribution arrangement between the parties.

On the whole, the property rights of divorced persons are highly complex. They can involve issues such as whether one spouse improved upon property, or whether property was commingled during marriage, whether property was moved across state lines, and other issues.

What is Trespassing?

Trespassing is a legal issue that is specific to real property, not personal property. Trespassing occurs when a person enters another person’s land or real property unlawfully and without their permission. Trespassing can also involve other issues, such as interfering with another’s ability to use their property, or when a person remains on property without permission.

Generally speaking, property owners owe a duty of care to ensure that visitors do not get injured while on their property. It even extends in a limited sense to trespassers on the land, especially trespassers that the owner knows to be on the land or trespassers who enter the land frequently.

However, property owners owe the highest duty of care to persons they have invited to be on their property. For instance, they have a duty to repair property structures in disrepair, especially if they are aware of the dangers or risks that the structures might pose to a visitor.

What are Other Types of Property?

There are various other types of property, many of them overlapping with other types of property such as real and personal property. For instance, state and federal laws often address other types of property like:

  • Intellectual Property: Intellectual property is a type of property that is generally intangible and without physical form, such as songs, names and logos attached to products, inventions, and authored works. These types of property can generate income for the owner, but they can also be subject to unauthorized use, theft, and infringement issues;
  • Business Property: Business or commercial property is property that is owned by a business or a company. It can involve both real property (such as an office building) or personal property items (like company tools or computers, etc.). Business property may be subject to business property tax laws not usually applied to other types of property;
  • Private Property: When the term “private property” is used, it is usually referring to real property owned by individuals, as opposed to property that is owned, maintained, or managed by the government (i.e., “public property”). Private property owners generally have various rights to their land, as well as obligations to keep it safe. In limited circumstances the government can sometimes seize private property and convert it for public uses. In such cases, they will usually have to reimburse the property owner for taking and using the property.

Property disputes can arise in connection with each of these types of property. There are many other forms of property as well. Legal disputes over property can be complex, and can often take years to resolve (especially for larger plots of land).

Do You Need a Lawyer for Issues with Your Property?

Property issues can be broad and may involve various other legal issues as well. IT may be in your best interests to hire a property lawyer if you have any issues regarding your property. If you have a civil issue involving a property dispute or issue, you may need to hire a civil real estate or property lawyer in your area. If you are facing any type of charges for theft or destruction of property, then a criminal lawyer may be necessary to help you with your case.

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